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"cHiEF JUSTICE 1 SUSAN L..CARLSON
/ SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Petitioner, No. 95603-1
V.
MICHAEL DAVID HENDERSON,
Filed DEC n 6 ?fl1«
Respondent.
GonzAlez,J.—It is generally not murder to kill another in self-defense. It
may not be murder—^though it is often a serious crime—^to kill another by accident.
Michael Henderson shot and killed Abubakar Abdi during an argument.
Henderson was charged with felony murder based on second degree assault with a
deadly weapon. Henderson contended that while acting in self-defense, he
accidentally killed Abdi. The jury was instructed on the defense ofjustifiable
homicide. The trial court did not instruct the jury on excusable homicide. Under
the instructions given, the jury necessarily found that the shooting was neither self-
defense nor accident when it found Henderson guilty offelony murder predicated
on second degree assault. The Court of Appeals reversed, finding the trial court
State V. Henderson, No. 95603-1
erred when it failed to give the excusable homicide instruction. We granted the
State's petition for review.
The State argues that the excusable homicide instruction was properly
rejected. We agree. Henderson was able to adequately argue his theory of the case
under the proper instructions that were given. We reverse the Court of Appeals
and remand back to that court for further proceedings under RAP 13.7(b).
Facts
On October 11, 2015, Henderson shot and killed 20-year-old Abdi. Abdi
and his friends were socializing at a restaurant and, later, at a Shell gas station
across the street. There, Abdi began arguing with Nekea Terrell. While Terrell
was buying alcohol at the gas station, Abdi called her names and told her to hurry
up. Terrell, Abdi, and Abdi's acquaintances continued to insult each other. One of
Terrell's acquaintances tried to calm her down.
Terrell knew Henderson because he dated her cousin. Terrell testified at
trial that at this point, Abdi was "getting really bold" and "pumped up." Report of
Proceedings(RP)(May 23, 2016) at 155. She said they continued to argue and she
thought she was going to have to fight a "dude." Id. at 156. Terrell said she was
ready to fight Abdi and Abdi never claimed he was armed or displayed a weapon.
State V, Henderson, No. 95603-1
Henderson joined the small group gathered around Abdi and Terrell as they
argued.
Henderson, the people with him, and Abdi's group were "cussing each other
out." RP(May 24, 2016) at 296. Nobody made overt threats, despite tension
being high. To this point, no weapons were shown, seen, or talked about.
Henderson testified that Abdi "flinched" his shoulders, lunged forward, moved his
arms toward his waist, and seemed to reach for something in a pocket. RP (June 1,
2016) at 682. Henderson drew a handgun from his rear pants pocket, pointed it
directly at Abdi, and pulled the trigger at close range. Abdi died almost instantly.
The shooting was captured on surveillance video.
Henderson's reason for drawing the gun, whether he pulled the trigger
intentionally or accidentally, and his objective when he fired the weapon were all
in dispute at trial. The jury found him guilty of felony murder based on second
degree assault with a deadly weapon. The Court of Appeals reversed, and we
granted review.'
'Since the Court of Appeals reversed for instructional error, it did not reach all the arguments
Henderson raised below.
State V. Henderson, No. 95603-1
Analysis
Since the trial court refused to give the instruction based on a ruling oflaw,
our review is de novo. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883
(1998)(citing State v. Lucky, 128 Wn.2d 727,731, 912 P.2d 483 (1996), overruled
on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700(1997)).
The Sixth Amendment guarantees the right to a fair trial. U.S. Const.
amend. VI. Jury instructions satisfy the defendant's Sixth Amendment right to a
fair trial if, taken as a whole, they accurately inform the jury of the relevant law
and permit each party to argue their theory of the case. State v. Riley, 137 Wn.2d
904, 909, 976 P.2d 624(1999)(quoting State v. Bowerman, 155 Wn.2d 794, 809,
802 P.2d 116 (1990)). The adequacy of each instruction must be "evaluated in the
context ofthe instructions as a whole." State v. Gentry, 125 Wn.2d 570,613 &
n.56, 888 P.2d 1105 (1995)(citing State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d
289(1993)). "A defendant in a criminal case is entitled to have the jury fully
instructed on the defense theory of the case." State v. Staley, 123 Wn.2d 794, 803,
872 P.2d 502(1994)(citing State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902
(1986)).
Learned commentators have opined that "[ujnlike other defenses, the
'defense' of excusable homicide adds little if anything to the jury's analysis." 11
State V. Henderson, No. 95603-1
Washington Practice: Washington Practice Jury Instructions: Criminal
15.01 cmt. at 242(2016)(WPIC);see RCW 9A.16.030 ("Homicide is excusable
when committed by accident or misfortune in doing any lawful act by lawful
means, without criminal negligence, or without any unlawful intent."). We
elaborated in State v. Burt\
Because RCW 9A.32.010 requires an unjustifiable homicide which is
not criminal to be excusable, the statutory definition of excusable homicide
is merely a descriptive guide to the general characteristics of a homicide
which is neither murder nor manslaughter. The characteristics of excuse do
not have to be independently proved or found. Insufficiency of proof beyond
a reasonable doubt ofthe mens rea of murder or manslaughter requires a
finding of excusable homicide. Therefore, if a defendant wishes to argue
excuse to the jury, he only needs to persuade the jury that the prosecution
has not carried its burden because there is reason to doubt that the act was
committed with a mental element of at least criminal negligence.
94Wn.2dl08, 110-11,614 P.2d 654(1980).
In contrast, a justifiable homicide instruction—^which, here, was requested
and given—does add to the jury's analysis. It requires a jury to find that the
defendant reasonably believed the person slain (or others who the defendant
reasonably believed were acting in concert with the person slain) intended to
commit a felony or to inflict death or great personal injury. RCW 9A.16.050(1);
WPIC 16.02. This adds substance to the jury's analysis. Excusable homicide, by
contrast, is merely descriptive. It does not create an affirmative defense. It is
reserved, at most, for cases where the defendant accidentally killed a person
State V. Henderson, No. 95603-1
without criminal negligence because, had there been criminal negligence, the
slaying would be manslaughter in the second degree.^ See also WPIC 15.01 cmt.
at 242("In many cases, an instruction on excusable homicide will confuse the jury
without providing any meaningful guidance.").
The Court of Appeals held it was reversible error for the trial court to refuse
to give an excusable homicide instruction. It found that because there was some
evidence of accident and because a defendant is entitled to control his defense, the
refusal to give the instruction was reversible error. But "[jjury instructions must be
considered in their entirety to determine ifthere is reversible error in a specific
instruction." State v. Schulze, 116 Wn.2d 154, 167-68, 804 P.2d 566(1991)(citing
Caruso v. Local Union 690 oflnt'lBhd. ofTeamsters, 107 Wn.2d 524, 533, 730
P.2d 1299(1987)). Read as a whole, these instructions adequately told the jury the
intent, conduct, and necessary lack of accident it must find beyond a reasonable
doubt to convict. Henderson's accident defense was wholly and adequately
presented to the jury in the instructions as given. Specifically:
^ We question the usefulness of WPIC 15.01 and the proper characterization of excusable
homicide as a defense. Read in context, ROW 9A.16.030 does not seem to function as a defense
to murder, homicide by abuse, or manslaughter in the way other provisions of chapter 9A.16
RCW do. See, e.g., RCW 9A.16.060("In any prosecution for a crime, it is a defense that..."),
.070(same);see also Suppl. Br. ofPet'r, at 11-14. The excusable homicide statute, by contrast,
merely defines the circumstances under which homicide is not a crime. As was the case here, if
the jury is properly instructed as to the elements of murder, homicide by abuse, or manslaughter,
the definition of excusable homicide is likely not helpful and will likely be confusing instead.
State V. Henderson, No. 95603-1
[Instruction 8:] A person acts with intent or intentionally when acting
with the objective or purpose to accomplish a result that constitutes a
crime.
[Instruction 9:] A person commits the crime of murder in the second
degree when he commits assault in the second degree and in the course
of and in furtherance of such crime he causes the death of a person other
than one ofthe participants.
[Instruction 10:] To convict the defendant of the crime of murder in the
second degree, as charged in Count One each of the following elements
of the crime must be proved beyond a reasonable doubt.
(1)That on or about October 11, 2015 the defendant committed
assault in the second degree ....
[Instruction 11:] A person commits the crime of assault in the second
degree when he assaults another with a deadly weapon.
[Instruction 13:] An assault is an intentional shooting ofanother person,
with unlawful force, that is harmful or offensive.
Clerk's Papers at 54-57, 59(emphasis added).
The jury instructions adequately and properly informed the jury of the
applicable law. Henderson was able to argue his theory of the case. And he did.
Defense counsel presented evidence of accident through Henderson's own
testimony on direct and redirect. Defense counsel also argued accident in his
closing argument.
Had the jury doubted that Henderson intentionally shot Abdi, it could not
have convicted under these instructions. Ifthe jury doubted that Henderson
intended to shoot Abdi, a guilty verdict on second degree assault with deadly
weapon would necessarily be precluded. Ifthe jury found the shooting was
7
State V. Henderson, No. 95603-1
accidental, it could not have found Henderson intended to shoot the gun and could
not have convicted. Read as a whole, the instructions given in this case allowed
Henderson to argue his theory of the case, and he did.
Conclusion
We hold that the trial court did not err in refusing to give an excusable
homicide jury instruction. Henderson was able to adequately argue his theory of
the case under the instructions given. Accordingly, we reverse and remand to the
Court of Appeals to consider the remaining arguments Henderson raised below.
State V. Henderson, No. 95603-1
WE CONCUR:
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